Four British Columbia Indigenous groups are set to argue in the Federal Court of Appeal that the Canadian government failed to consult adequately with them before its latest approval of the Trans Mountain pipeline expansion.

A three-day hearing is scheduled to begin today in Vancouver to consider legal challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley.

Several First Nations, environmental groups and the City of Vancouver had originally filed challenges making a range of arguments including that the project threatens southern resident killer whales off B.C.'s coast.

The court only allowed six First Nations to proceed and called for an expedited hearing focused on the federal government's consultation with Indigenous communities between August 2018 and June 2019.....

Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp., the Crown corporation that operates the pipeline and is building the expansion.

The Tsleil-Waututh and environmental groups filed leave to appeal to the Supreme Court of Canada, arguing that a broader hearing was necessary, but the high court has not yet issued a decision.

Leaders of the four Indigenous groups that are still challenging the project are expected to speak at a news conference before the hearing begins this morning.

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However, the four Indigenous groups allege that the government came into consultations having predetermined the outcome.

"Many of the Indigenous and First Nation applicants now allege that the poor quality and hurried nature of this further consultation rendered it inadequate," Federal Court of Appeal Justice David Stratas said in his decision allowing the legal challenges to proceed.

The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.

Lawyers for the Canadian government say it conducted a new round of consultations with Indigenous groups about the Trans Mountain pipeline expansion that was reasonable, adequate and fair.

Jan Brongers began arguments on behalf of the federal government Tuesday, asking the Federal Court of Appeal to toss out legal challenges to the government's approval of the project for the second time.

The court has heard from four Indigenous groups in British Columbia that say the government once again failed in its duty to hold meaningful dialogue about the project during consultations conducted between August 2018 and June 2019.

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A lawyer for the Tsleil-Waututh had argued the government withheld its peer review of three expert reports prepared for the nation until after the consultation period closed.

Anderson said the report in question wasn't a peer review at all, but a summary report intended to inform Canada's consultation team so that educated discussions could take place.

The government provided the First Nation with the internal review, even though it had no obligation to do so, and made the author available to the First Nation in a meeting, she said.

"In no way did Canada attempt to suppress or alter scientific information. To the contrary, Canada has been extremely transparent," she said.

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Another Crown lawyer, Jon Kahn, said the consultation with Coldwater was frustrated by delays initiated by the band. The chief and council stopped responding to government consultants over a six-week period, declined a meeting with the natural resources minister and asked for more time to discuss an alternate route for the pipeline, he said.

A lawyer for the First Nation said Monday that the band has asked for a two-year baseline study on an aquifer that provides the reserve with its only drinking water and that could be threatened by the project.

Kahn said information that Coldwater believes is missing about the aquifer and the alternate route will be filed with the Canadian Energy Regulator, formerly the National Energy Board, but determining the length of a baseline study is outside the court's purview.

The Tsleil-Waututh and Squamish nations have accused Ottawa of altering internal government documents related to the risks of marine spills before once again approving the Trans Mountain expansion project.

Details of these allegations were presented in the Federal Court of Appeal this week where four First Nations groups are challenging the re-approval of the pipeline, arguing that consultations with their communities once again fell short of the standard required.

A Federal Court of Appeal ruling in August 2018 quashed the initial approval of the pipeline expansion and forced the federal government to revisit the last stage of consultation with First Nations.

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Tsleil-Waututh's core concerns about an expanded Trans Mountain pipeline are an increase in tanker traffic in the Burrard Inlet, impacts on the southern resident killer whale population and the risk of oil spills in the marine environment.

It says more research is needed on how to clean up a diluted bitumen spill and has concerns that it cannot be effectively cleaned up.

In 2018, Tsleil-Waututh commissioned three expert reports on these matters with the Squamish Nation. The nations, which have similar concerns about the project, submitted these reports to Canada during its reconsideration of the project.

In court on Monday, Tsleil-Waututh's lawyer accused Canada of suppressing internal documents related to these expert reports, saying they weren't handed over to Tsleil-Waututh until after the revisited consultations were complete.

"Canada belatedly gave [Tsleil-Waututh] a revised version of a scientific conclusion that was altered… to downplay the scientific consensus and instead advocate for a pro-approval position," lawyer Scott Smith told the court on Monday.

In their argument about the reports being altered, Tsleil-Waututh's lawyer said after Canada re-approved the pipeline in June the nation came into possession of previous versions of Canada's internal reviews that showed the final version it got earlier had been altered to "support Canada's position and the ultimate outcome selected."

Tsleil-Waututh argued that previous versions of the reviews showed Canada's scientists agreed with the expert reports commissioned by Tsleil-Waututh and Squamish that found there is insufficient information on the behaviour of diluted bitumen to adequately address the risk of oil spill and clean up.

Speaking at a news conference on Monday, Tsleil-Waututh elected chief Leah George-Wilson said she was "extremely troubled" to learn about the allegations.

"The federal government initially denied the existence of its own peer review documents of Tsleil-Waututh and Squamish expert reports," she said.

In their argument about the reports being altered, Tsleil-Waututh's lawyer said after Canada re-approved the pipeline in June the nation came into possession of previous versions of Canada's internal reviews that showed the final version it got earlier had been altered to "support Canada's position and the ultimate outcome selected."

Tsleil-Waututh argued that previous versions of the reviews showed Canada's scientists agreed with the expert reports commissioned by Tsleil-Waututh and Squamish that found there is insufficient information on the behaviour of diluted bitumen to adequately address the risk of oil spill and clean up.

Smith argued that Ottawa had already made up its mind about whether to approve the pipeline again before renewing the consultation. He pointed to public comments made by Prime Minister Justin Trudeau after the court quashed its initial approval, in which he said the project is in the “national interest,” as well as similar comments made by cabinet ministers.

“Canada simply refused to budge on any of these issues or change its position because it was unilaterally focused on reapproving the project and in the words of the minister of finance, ‘getting shovels into the ground,’ “ Smith said.

The result was another round of consultations that was “fundamentally flawed” before Ottawa’s latest approval of the pipeline expansion, he said.

Lawyers for the Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley also presented arguments Monday.

Matthew Kirchner told the panel of three judges that the existing Trans Mountain pipeline cuts through the heart of the Coldwater reserve 12 kilometres southwest of Merritt in B.C.’s Interior.

The reserve relies entirely on the underlying aquifer for its drinking water and Ottawa has a fiduciary duty to protect it, he said.

“It is hard to conceive of an issue that is more fundamental, and of more fundamental importance to repairing Canada’s damaged relationship with Indigenous Peoples, than that of the protection of drinking water on reserve,” Kirchner told the court.

The band has requested a hydrogeological study since 2015, beginning with a two-year baseline report, in order to understand impacts on the aquifer.

Only two weeks before cabinet voted on the project, the Crown consultant emailed the First Nation’s chief on a Friday night providing him with vital information about how the aquifer would be analyzed and how a possible alternate route would be assessed, he said.

The chief was given until only the following Wednesday to provide a response, Kirchner said.

“There is no opportunity at all in there for meaningful dialogue,” he said.

The proposal set an arbitrary deadline for an aquifer assessment of Dec. 31, neglecting the two-year baseline review requested, he said.

It all started yesterday when the BC Court of Appeal dismissed Taseko’s application for leave to appeal an injunction prohibiting Taseko from conducting exploratory drilling around Teztan Biny (Fish Lake), a culturally significant area for the Tsilhqot’in. Teztan Biny is now safe from the intrusion of Taseko’s machinery until at least 2021. The injunction is necessary because, even though Taseko’s New Prosperity Mine proposal has been federally rejected multiple times (and confirmed in the Court of Appeals - see below), the drilling program, being “exploratory”, comes under provincial jurisdiction.

That was plenty to celebrate right there!

Then, today, two more huge wins! Simultaneous decisions by the Federal Court of Appeal dismissed Taseko’s applications for judicial review of (a) the Joint Review Panel report, and (b) the 2014 decision by Governor-in-Council rejecting the New Prosperity mine proposal. A panel of three justices fully affirmed a previous rejection by a lower court. They didn’t uphold a single argument put forward by Taseko!

Justice De Montigny’s interpretation of the Crown’s duty to consult is of particular interest for Indigenous rights and reconciliation. Rejecting Taseko’s argument that it had been a victim of “procedural unfairness” because Canada failed to notify the company every time the Tsilhqot’in made a submission opposing the mine, Justice De Montigny said:

“I am inclined to think that Taseko’s proposal would trivialize the duty to consult and empty it of its true content. It must be remembered that the duty to consult (and accommodate) is part of a process of reconciliation, which itself flows from rights guaranteed by section 35(1) of the Constitution Act, 1982 (...). It could hardly be said that the duty to consult supports and promotes reconciliation and re-affirms the nation-to-nation relationships with the First Nations if the Crown was equally to consult with the proponent and, for that matter, any other interested parties.” (emphasis ours)

The governments of Alberta and Saskatchewan are urging the Federal Court of Appeal to defer to cabinet's approval of the Trans Mountain pipeline because they say Indigenous opposition shouldn't outweigh other public interests in the project.....

They still don't seem to get that indigenous people have actual legal rights. The courts aren't weighing opposing opinions. They will rule based on the law. By law the Liberals were required to consult in good faith.

The Trans Mountain oil pipeline expansion can proceed, even if Indigenous concerns still haven't been addressed, because the Trudeau government consulted adequately with First Nations and the consultation process can't be used as a veto, the Federal Court of Appeal said Tuesday.

The unanimous ruling by the three-judge panel found that the government's second attempt at fulfilling its constitutional duty to consult meaningfully with Indigenous peoples was sufficient. It followed the court's decision in August 2018 to quash the original approval of the pipeline.

"Contrary to what the applicants assert, this was anything but a rubber-stamping exercise," reads the judgment, issued in downtown Ottawa on Feb. 4 by justices Marc Noël, Denis Pelletier and John Laskin.

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Chief Leah George-Wilson said Tuesday afternoon from Vancouver that the Tsleil-Waututh Nation already has another application before the Supreme Court challenging a determination related to the court case's scope.

The nation "will always exercise every legal option that we have," she said, discussing a possible appeal. “There are a number of things in this court decision that we think aren't right."....

Federal Court of Appeal’s Ruling on TMX Brazenly Attacks Indigenous Title and Rights and Threatens Climate

Today the Federal Court of Appeal overruled the four challenges to the federal government’s re-approval of the Trans Mountain pipeline expansion (TMX). The Union of BC Indian Chiefs (UBCIC) is deeply disappointed by the court’s decision in Coldwater Indian Band et al. v. Attorney General of Canada et al. that gives the greenlight to a pipeline project that will contribute to carbon emissions, environmental harm, and violations of Indigenous Title and Rights.

“UBCIC strongly disagrees with the decision released today and continues to stand by the Indigenous Nations who put forth their legal challenges to defend their right to free, prior and informed consent, and to hold the Crown accountable for its failure to adequately consult with Indigenous peoples,” stated Grand Chief Stewart Phillip, President of UBCIC.

“The court’s ruling rests upon discriminatory and hypocritical foundations; their rejection of the Nations’ appeal rests on the claim that when it comes to a project of public interests, ‘the law does not require the interests of Indigenous peoples prevail,’ and that Indigenous peoples cannot veto projects such as the TMX. Let me make clear that Indigenous peoples are not seeking a veto. We are seeking to have our human rights upheld. The so-called rule of law cannot be used to discriminately discount the Title and Rights of the Indigenous Nations that stand to be impacted by natural resource projects on their territories. Furthermore, this is about more than the superficial duty to consult process, it is about the duty to the environment and to our grandchildren. In the end, this is another day at the office, and we are resolute in our commitment to uphold inherent Indigenous Title and Rights and self-determination, and to protect the lands and waters.”

Chief Don Tom, Vice-President of UBCIC stated, “We are saddened that Canada and BC continue to rally around the TMX– it represents an environmental liability that we simply cannot afford in the age of climate emergency. Canada has bulldozed a pathway forward on this unsustainable project that is in no way honourable, in the interest of the public, or aligned with its commitment to implement federal legislation on the United Nations Declaration on the Rights of Indigenous Peoples.

Canada’s adversarial approach in dealing with Indigenous Nations concerned about the still inconclusive environmental risks the TMX poses, displays an alarming lack of respect for Indigenous Title and Rights and is inconsistent with the historic Supreme Court of Canada’s Tsilhqot’in judgement. Canada continues to ignore and minimize the severe environmental risks of the TMX: an oil leak could disastrously contaminate the main source of drinking water for the Coldwater Indian Band, and a seven-fold increase tanker traffic would raise the threat of an oil spill in sensitive habitat that lies within traditional territories of the Tsleil-Waututh and Squamish Nations.”

“The fossil fuel industry is culpable in the climate crisis and represents an era of greenhouse gas emitting infrastructure that is for dinosaurs, not for a world struggling to combat climate change; Canada needs to treat this as an incontrovertible fact,” continued Kukpi7 Judy Wilson, Secretary-Treasurer of UBCIC. “It is alarming that Canada is so dead-set on pursuing the TMX when oil prices are declining, forests are burning, and more and more animal species are on the edge of extinction.”

She concluded, “The Federal Court of Appeal stated that ‘reconciliation does not dictate any particular substantive outcome.’ On the contrary, reconciliation is about better outcomes for everyone, and the betterment of Indigenous lives in a nation that has marginalized and stolen their Title and Rights since colonization. The court’s decision does not signal defeat; rather it signals a renewed call for all of us to collectively work together to permanently halt the project and make it clear to Canada and BC that they can’t adhere to reconciliation only when it serves their interests. They must capitalize on clean, sustainable energy that doesn’t come at the cost of the environment or the Title and Rights of Indigenous peoples.”

On February 4, 2020, the Federal Court of Appeal (FCA) released its much-anticipated decision (the Coldwater case) on the appeals of the second approval of TMX. The court found that the federal government’s second round of consultation with affected First Nations was “adequate,” in a judgment that focused on the “reasonableness of the Governor in Council (Cabinet) decision, including the outcomes reached and the justification for it.” [para 29]

Two factors significantly affected the outcome of the Coldwater case.

First, the FCA’s leave decision of September 4, 2019 limited the Coldwater case so it only considered Indigenous consultation between August 30, 2018 and June 18, 2019 – the period between the previous court decision that quashed the pipeline’s approval (the Tsleil-Waututh decision) and the second approval by federal Cabinet. The leave decision excluded legal arguments on conflict of interest and bias, as well as statutory issues such as compliance with the National Energy Board Act, the Canadian Environmental Assessment Act 2012, and the Species at Risk Act, among others. The leave decision also excluded applicants who were not First Nations involved in the 2018 Tsleil-Waututh case.

It is worth noting that several parties have sought leave to appeal the September 2019 decision limiting the scope of the Coldwater case, and we are still waiting to find out if the Supreme Court of Canada will hear the appeal.

The second factor was the FCA’s application of new case law from the Supreme Court of Canada – known as the Vavilovtrilogy. Vavilov was a highly anticipated SCC case (among administrative law nerds at least) that was meant to clarify the standard of review that Canadian courts should use when administrative law decisions are appealed. The Vavilov decision was released after the FCA had concluded the oral hearing in Coldwater, and parties were invited to make additional submissions on the impact of Vavilov to the Coldwater case.

In the end, the FCA relied on Vavilov to inform its analysis of the adequacy of consultation in Coldwater, and in doing so, may have changed the nature of consultation cases moving forward.

Specifically, in Coldwater the court departed from its past practice of reviewing the evidentiary record to determine the adequacy of consultation, following Vavilov:

[28] In conducting this review, it is critical that we refrain from forming our own view about the adequacy of consultation as a basis for upholding or overturning the Governor in Council’s decision. In many ways, that is what the applicants invite us to do. But this would amount to what has now been recognized as disguised correctness review, an impermissible approach (Vavilov, para. 83)

In its decision, the FCA panel was critical of the arguments made by First Nations during the hearing, even though Vavilov had not yet been decided. Effectively, Vavilov moved the goal posts for consultation cases, but only after the expedited Coldwater hearing was finished.

Instead of looking at what happened during consultation to determine whether it was meaningful and upheld the honour of the Crown (the test for meaningful consultation), the FCA deferred to Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. The court held that Cabinet’s decision, including the outcome reached and justification for it, was reasonable, relying on Cabinet’s own decision document and accompanying explanatory note.

How likely is it that a government would judge it had failed to comply with its constitutional responsibilities towards First Nations and therefore refuse to approve the pipeline? Is its self-judgment objective and disinterested? The cabinet’s interpretation of a constitutional duty should be more than just reasonable; it should be correct. For the FCA to review the correctness of the cabinet’s decision, far from being “impermissible,” may well be required.

The Supreme Court of Canada has denied leave to appeal a decision by the Federal Court of Appeal from September 4th, 2019 which significantly limited the grounds that the First Nations, including Tsleil-Waututh, could argue in the recent Coldwater case. Tsleil-Waututh announced today that they would appeal the Coldwater decision, which upheld the approval of the Trans Mountain Expansion Project (TMX) after finding consultation to be adequate.

“We took this issue to the Supreme Court of Canada not only to stand up for our inherent and constitutionally protected rights, but also to make sure that Canada follows their own laws when making decisions,” said Tsleil-Waututh Chief Leah Sisi-ya-ama George-Wilson. “We are disappointed in this result, but our opposition remains unchanged. We will be appealing the consultation case to the Supreme Court of Canada. This isn’t over by a long shot.”

In today’s leave decision, Tsleil-Waututh and others argued Federal Court of Appeal (FCA) made a legal error by raising the legal test applicable to leave decisions, thereby excluding grounds that were not about Indigenous consultation from the FCA’s Coldwater case. The case would have dealt with important implications on the relationship between the government and the courts in a constitutional democracy, and could have impacted decisions beyond First Nations upholding their Aboriginal rights.

The grounds the FCA excluded from the consultation case included:

– Canada’s failure to consider marine shipping throughout Canada’s Exclusive Economic Zone in the environmental assessment and final decision on TMX;

– Failing to comply with the Canadian Environmental Assessment Act, 2012 and Species at Risk Act in relation to the Southern Resident Killer Whales;

– Relying on stale economic evidence and ignoring fresh evidence that the project is uneconomic; and

– Failing to consider TWN’s Aboriginal title and rights by refusing to justify infringement of rights or obtaining consent.

“We believe that Canada should follow their own laws when reviewing projects such as TMX. Because of this decision, Canada’s failure to apply the Canadian Environmental Assessment Act, 2012 and theSpecies at Risk Act will put the endangered Southern Resident Killer Whales at greater risk of extinction. Canada’s reliance on stale-dated economic evidence will not be examined, in spite of the fact that the oil and gas industry in Canada is in a decline, and TMX is no longer needed nor economically feasible at the new $12.6 billion construction cost. This will leave Canadian taxpayers on the hook for what will likely become a stranded asset.” Said Chief George-Wilson....